On October 7, 1996, General Teamsters Union Local No. 662 filed a complaint with
the
Wisconsin Employment Relations Commission alleging that the City of Marshfield, Waste
Water
Treatment Plant had committed prohibited practices within the meaning of Sec. 111.70(3)(a)4
of the
Municipal Employment Relations Act when it agreed to a 3 percent wage increase with the
Complainant in bargaining, then later "advised employes that if they accepted a 3 percent
wage
increase there would be layoffs of four weeks in each of the three years of the agreement,
but if the
employes would accept a 2.75 percent wage increase for each year of the agreement, there
would be
no layoffs." The complaint added: after the employes ratified the tentative agreement which
contained a 3 percent yearly wage increase, the Respondent informed "bargaining unit
employes that
the layoffs which it had threatened will begin in November, 1996." The Commission
appointed
Dennis P. McGilligan, a member of its staff, to act as Examiner and to make and issue
Findings of
Fact, Conclusions of Law and Order as provided in Sec. 111.07(5), Stats. Hearing on the
complaint
was held on July 1, 1997 in Marshfield, Wisconsin. The hearing was transcribed. The
parties
completed their briefing schedule on October 15, 1997.

No. 28973-A

Page 2

No. 28973-A

The Examiner, having considered the evidence and argument of the parties and being
fully
advised in the premises, makes and files the following Findings of Fact, Conclusions of Law
and
Order.

FINDINGS OF FACT

1.General Teamsters Union Local No. 662, hereinafter referred to as the
Complainant
or
Union, is a labor organization within the meaning of Section 111.70(1)(h), Stats., and has its
principal
place of business at 2220 Division Street, P.O. Box 163, Stevens Point, Wisconsin,
54481-0163.

2.City of Marshfield (Waste Water Treatment Plant), hereinafter referred to as the
Respondent
or City, is a municipal employer within the meaning of Sec. 111.70(1)(j), Stats., and has its
principal
place of business at 630 South Central Avenue, Marshfield, Wisconsin, 54449-0727.

3.At all times material hereto, the Union has been the exclusive bargaining
representative of
certain Waste Water Treatment Plant employes of the City's Waste Water Treatment Plant.

4.On June 27, 1995, the City's Common Council held a meeting and discussed the
City's
budget parameters and guidelines for the 1996 year. The Common Council determined that:

[t]he 1996 budget should limit the growth in Personal Services
category expenditures (i.e.
salaries, wages, benefits) to no more than can be sustained from our actual growth in
assessed
valuation (i.e. we should not increase the tax levy rate to finance increased personnel costs).

The Waste Water Treatment Plant and its personnel were subject
to this directive.

5.In the fall of 1995, the City's Common Council determined that a wage increase of
2.75
percent would be granted City employes for the 1996 year and that if a higher wage increase
was
obtained by employes, layoffs would occur to reduce the effective wage increase to 2.75
percent.
Nicole Onder, Human Resources Specialist and the City's representative in collective
bargaining,
conveyed this information to the various bargaining units in the City of Marshfield.

6.The City and the Union commenced negotiations for a successor 1996 collective
bargaining
agreement on November 17, 1995. Nicole Onder served as the City's Chief Spokesperson in
the
negotiations. Ron Dickrell, Waste Water Treatment Plant Superintendent, also served on the
City's
bargaining team, and attended all bargaining sessions. Reggie Konop, Business
Representative,
served as the Union's Chief Spokesperson in the negotiations. Konop had talked with
AFSCME
representatives prior to these negotiations regarding the status of their

Page 3

No. 28973-A

bargain with the City including "what they were offering, going forth from the City. I
should say,
what their proposals were."

7. As of December, 1995, the parties were still discussing non-economic issues and
benefits such
as sick leave and compensatory time. They had not yet begun discussing a wage increase.

8. The parties met in a negotiation session on December 18 or 19, 1995. The
primary topic of
discussion was the benefit package including sick leave accumulation and a comp time bank
for
employes to pay insurance premiums upon retirement. The meeting gave rise to a heated
discussion
between Onder and Konop about sick leave. Shortly before the meeting ended, Onder
offered on
behalf of the City a 2.75 percent wage increase. The Union did not respond because it first
wanted
to resolve the benefit package.

9. After the above meeting, Onder met with Randy Allen, City Administrator, and
informed him of
what had been discussed in the negotiations, including the City's wage offer and position that
there
would be employe layoffs for any wage increase over 2.75 percent.

10. On December 20, 1995, the Union filed a Petition for Interest Arbitration with
the Wisconsin
Employment Relations Commission, herein Commission. Included with the Petition was a
wage offer
by the Union of 3.5 percent for each year of the contract. On January 5, 1996, the City
filed its
preliminary final offer with respect to the aforesaid Petition. In its preliminary final offer,
the City
proposed a 2.75 percent wage increase for the 1996, 1997 and 1998 contract years.

11. On February 12, 1996, the City's Finance, Budget, and Personnel Committee
held a meeting.
At that meeting, the Committee reviewed the status of the contract negotiations with the
Union.
Onder advised the Committee that the Union was requesting a 3.5 percent wage increase for
each
year of the agreement in its preliminary final offer. Onder also advised the committee that
she had
advised the Union that any increase over 2.75 percent would result in layoffs. The
Committee
approved offering a 3 percent wage increase "to the union as a final offer, but it would still
result in
layoffs." The Committee reiterated the City's position that a wage increase above 2.75
percent would
result in employe layoffs to reduce the effective wage increase to 2.75 percent. The
Committee
advised Onder to sent a strong message in this regard.

12. Onder met with the Common Council "throughout negotiations to brief them on
negotiations
and get further direction from them." However, Onder left the City's employment on or
about
February 12, 1996, and had no further involvement in negotiations.

13. A mediation/investigation session was subsequently conducted by a member of
the
Commission's staff. During the mediation/investigation session, the City proposed through
the
mediator a 3 percent annual wage increase for the 1996, 1997 and 1998 contract years. The
Union
accepted that proposal without much discussion on the subject between the parties. The

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No. 28973-A

parties were able to reach a number of tentative agreements with respect to other terms
of a successor
1996-1998 collective bargaining agreement. However, the parties were unable to reach
agreement
to all of the terms of the successor collective bargaining agreement.

14. At or about this same time City Administrator Allen, who was also involved in
the labor
negotiations, left the City's employment. Dean R. Dietrich of Ruder, Ware & Michler,
A Limited
Liability S.C., was then retained to assist the City in negotiations with the Union. During
the months
of June and July, 1996, Dietrich and Konop were able to negotiate and to agree to all of the
terms
of a successor 1996-1998 collective bargaining agreement. This included the annual 3
percent wage
increase for the 1996-1998 contract term.

15. On August 26, 1996, the City's Finance, Budget, and Personnel Committee held
a
meeting. At that meeting, the City's new Administrator reviewed with the Committee a
summary of
the tentative agreements reached with the Union. The Committee then ratified the terms of
the
tentative agreement.

16. Also on August 26, 1996, the Administrator met with Waste Water Treatment
Plant
Superintendent Ron Dickrell and went over a draft of a letter that he had intended on sending
out in
regard to layoffs. The Administrator recommended that Dickrell go over this draft with the
Union
prior to their ratification vote.

17. On the next day, August 27, 1996, Dickrell read the following memorandum to
Waste
Water Treatment Plant bargaining unit employes at a meeting:

By now, each of you are aware that the City must temporarily
reduce staffing levels to meet
budgetary mandates set by the Common Council. These layoffs are a result of a declining
economic
base which is resulting from minimal increases in our property taxes. During the time
employes are
laid off all benefits will be continued except contributions to the Wisconsin Retirement
System, the
Workers' Compensation fund and social security.

Department heads are now determining the
number of layoffs necessary to comply with the
fiscal constraints they must work within. It has been suggested that some employes might
desire
voluntary layoffs. Therefore, this memo is to offer any employes who may want to
volunteer, the
opportunity to do so. We will require a signed consent form indicating that the employee is
aware
that this layoff is voluntary. A form will be provided by your immediate supervisor.
Therefore, if
anyone is interested please contact your individual supervisor no later than 2:30 p.m.
September 20.
Also, if any of you have questions, please feel free to contact me.

Dickrell also explained to the employes that he had been
directed by one of the Council
members to inform the bargaining unit that acceptance of a 3 percent wage increase would
result

Page 5

No. 28973-A

in employe layoffs, whereas acceptance of a 2.75 percent increase would not result in
employe
layoffs.

Dan Mrotek and Harold Tauschek, Union Stewards, were among the bargaining unit
employes present at the meeting. Mrotek subsequently telephoned Konop and advised him of
the
City's position with respect to the 3 percent versus 2.75 percent wage increase noted above.

18. The City did not advise Konop of the above meeting, even though Konop was the
Business
Representative and the Chief Spokesperson for the Union. Konop did not learn of the
meeting until
the morning of the ratification meeting when Mrotek told him about it as noted above.
Konop was
aware, however, that the Marshfield Common Council had already approved the tentative
agreement
that was set for ratification.

19. On August 28, 1996, the Waste Water Treatment Plant bargaining unit employes
met to
review the terms of the tentative agreement with respect to the 1996-1998 collective
bargaining
agreement. The employes voted to accept the terms of the agreement, including a 3 percent
wage
increase for each year of the three year contract.

20. By memorandum dated September 27, 1996, Dickrell informed two Waste Water
Treatment
Plant employes, Mark Kivela and Harold Tauschek, that they would be laid off for a total of
40 hours
each commencing on November 10, 1996 and ending on November 16, 1996. The Union
immediately filed a grievance protesting same. During the processing of the grievance,
Konop met
with the City Finance Committee to discuss the layoffs. During this discussion, Konop
informed the
members of the Finance Committee that during the negotiations the Union understood "that
our
people were going to get a solid three percent increase and there was noting that was going
to affect
them." Konop also informed the Committee that it was not until the day before the aforesaid
ratification meeting that the bargaining unit employes were informed that if they took the 3
percent
then there would be layoffs, but if they settled at 2.75 percent there would be no layoffs.
Konop also
argued that the City should instead layoff a secretary in the Department who was a member
of a
different union but who had less seniority than bargaining unit employes. One of the
Aldermen said
something to the effect "there's got to be something in here that tells that these people were
told of
a layoff, there just has to be." Konop responded if there was it wasn't presented to the
Union.
Dickrell then checked the bargaining notes and minutes, but found nothing in writing to this
effect.

21. The City laid off the two bargaining unit members for one week in 1996 as noted
above.

22. The City has also implemented layoffs for 1996 with the AFSCME bargaining
units
including the clerical employees and DPW, an independent police union affiliated with
WPPA, LEER
and the Ordinance Enforcement and Dispatcher bargaining unit represented by the Labor
Association
of Wisconsin. In addition, the firefighter union is involved in a pending arbitration
proceeding for the
calendar years 1996 and 1997.

Page 6

No. 28973-A

23. The City did not inform the Union either at the December 18 or 19, 1995
negotiation
session, or at any time material herein, except just prior to ratification, that if they accepted
a wage
increase higher than 2.75 percent i.e. a 3 percent wage offer employe layoffs would occur to
reduce
the effective wage increase to 2.75 percent.

Upon the basis of the foregoing Findings of Fact, the Examiner makes and files the
following

CONCLUSIONS OF LAW

1. City of Marshfield, by its failure to inform General Teamsters Union Local No.
662
prior
to August 27, 1996 that acceptance of a 3 percent wage increase would cause layoffs, but if
employes
accepted a 2.75 percent wage increase for each year of the proposed agreement, there would
be no
layoffs, did not refuse to bargain collectively with the Union, and thus the City did not
commit
prohibited practices within the meaning of Sec. 111.70(3)(a)4, Stats., or derivatively, Sec.
111.70(3)(a)1, Stats.

2. Given the fact that the City of Marshfield's bargaining team did not reach a
tentative
agreement with the General Teamsters Union Local No. 662 bargaining committee at any
time
material herein regarding the 3 percent wage increase, the City of Marshfield, and its agents,
particularly Ron Dickrell, did not engage in bad faith bargaining by discontinuing support of
a
tentative agreement, and thus the City did not commit prohibited practices within the
meaning of Sec.
111.70(3)(a)4, Stats., or derivatively, Sec. 111.70(3)(a)1, Stats.

3. City of Marshfield, by reading the Memorandum set forth in Finding of Fact No.
17 to
bargaining unit employes on August 27, 1996, and by informing them on said date that
acceptance
of a 3 percent wage increase would result in employe layoffs, whereas acceptance of a 2.75
percent
increase would not result in employe layoffs, did not engage in individual bargaining with
employes
represented by the Union, and therefore, did not violate Secs. 111.70(3)(a)4, Stats., or
derivatively,
Sec. 111.70(3)(a)1, Stats.

Upon the basis of the foregoing Findings of Fact and Conclusions of Law, the
Examiner
makes and issues the following

ORDER

IT IS ORDERED that the Complaint filed herein be, and the same hereby is,
dismissed in its
entirety.

Dated at Madison, Wisconsin this 18th day of November, 1997.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Dennis P. McGilligan, Examiner

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No. 28973-A

CITY OF MARSHFIELD, WASTE WATER TREATMENT PLANT

MEMORANDUM
ACCOMPANYING

FINDINGS OF FACT, CONCLUSIONS OF LAW
AND ORDER

POSITIONS OF THE
PARTIES

Complainant's Position

Complainant, in its brief, argues that the Respondent engaged in bad faith bargaining
by
withholding relevant information. In support thereof, Complainant first points out that the
duty to
bargain in good faith includes the obligation to furnish information that is reasonably
necessary to the
Union's performance of its responsibilities as bargaining representative. Complainant states
the
record evidence established that the Respondent knew months before the tentative agreement
was
reached that anything more than a 2.75 percent wage increase could cause layoffs, but
withheld that
information from the Union. Complainant adds that Respondent knew that its own final offer
of 3
percent would result in layoffs but failed to tell the Union of same. Complainant concludes
that the
fact a 3 percent wage increase could cause layoffs is relevant information that it needed in
order to
effectively collectively bargain.

Complainant next argues that Respondent engaged in bad faith bargaining by
discontinuing
support of a tentative agreement. In particular, Complainant complains that Respondent's
bargaining
agents violated the duty to bargain in good faith when they failed to continue to support the
tentative
agreement that they approved and instead urged the Union's own members the day before
ratification
to sabotage the agreement by voting against it.

Finally, Complainant argues that Respondent engaged in illegal direct dealing when it
went
behind the Union's back and urged bargaining unit employes to reject the agreement after
bargaining
had been concluded.

For relief, Complainant requests "declaratory relief and an order that the City make
the laid-off employes whole."

Complainant, in its reply brief, points out that Respondent's case depends on Onder's
unsupported testimony that she told the Union during negotiations that a 3 percent wage
increase
would result in layoffs. Complainant adds:

By assuming this fact as true and failing to argue any other facts
in the alternative, the City has
tacitly acknowledged that if Onder did not inform the Union that a 3 percent wage increase
would
lead to lay-offs, the City engaged in a prohibited practice.

Complainant also points out that Respondent did not even
address the charge of direct dealing
in its brief and asserts that the only explanation for said omission is that Respondent has no
defense
to this charge. Complainant also rejects any assertion by Respondent that once the unit
notified
Konop of the illegal meeting, Complainant had a duty to either request renegotiation of the
tentative
agreement before the ratification meeting or recommend rejection of the tentative agreement
it had
achieved through months of negotiation and mediation with Respondent. To the contrary,
Complainant believes that if Respondent wanted to revisit the tentative agreement at the
eleventh
hour, at the very least, Respondent had a duty under MERA to request bargaining with the
Union's
representative, or in the alternative, a duty to continue their support of the agreement.

Based on all of the above, Complainant requests that Examiner find that Respondent
committed prohibited practices by the conduct noted above and order the appropriate relief.

Respondent's Position

In its brief, Respondent basically argues that it did not commit any
prohibited practices within
the meaning of Section 111.70(3)(a)4, Stats., by its actions herein. In support thereof,
Respondent
first argues that a review of relevant case law supports its position. In this regard,
Respondent first
points out that the Commission considers the totality of a party's conduct in determining
whether a
party has failed to bargain in good faith. Adams County, Dec. No. 11307-A (Schurke,
4/73),
aff'd by operation of law, dec. No. 11307-B (WERC, 5/73) Respondent adds that
Complainant
must prove a violation of the duty to bargain by a "clear and satisfactory preponderance of
the
evidence."

Respondent next notes that in City of Beloit, Dec. No. 27779-A (McGilligan, 3/94)
the
Examiner found that the City had not committed a prohibited practice when it laid off certain
employes because said action was based on "fiscal constraints and policy decisions not
related to any
hostility toward the Union." (Emphasis supplied) On review of said decision,
Respondent points out
that the Commission observed:

. . . In our view, it is generally appropriate for one party to
advise the other during the collective
bargaining process of the potential negative consequences if a proposal or position ultimately
is
included in the collective bargaining agreement. Thus, for instance, if an employer advises a
union
that acceptance of the union's wage demands might or would require the layoff of employes
and the
totality of the circumstances surrounding the employer's statement establish that the employer
is not
motivated by a desire to threaten employes for the exercise of their right to collectively
bargain, that
employer is acting in a legal manner consistent with the collective bargaining
process. The
employer in such

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No. 28973-A

circumstances is not seeking to deter employes from exercising
rights but rather seeking to
persuade employes to change the position they are taking at the collective bargaining table
when
exercising their rights. Simply put, parties are generally free to take whatever
positions they wish at
the collective bargaining table, but cannot expect to be insulated from any consequences if
they are
successful in having those proposals become part of the collective bargaining
agreement. . . .
(Emphasis supplied) City of Beloit, Dec. No. 27779-B (WERC, 9/94), at 10.

before concluding:

. . . we are persuaded that the
Examiner correctly concluded that the City was not motivated by
hostility but rather by legitimate management decisions and public policy choices regarding
service
levels and financial constraints. Supra at 11. (Emphasis supplied)

Respondent also notes that in City of Medford Electric
Utility,
Dec. No. 28440-D
(Nielsen, 5/97) the Examiner found that the City had not committed a prohibited practice by
transferring work from the City's Electric Utility, subsequently subcontracting that work to a
third
party, and then reducing the work hours of an employe. In arriving at that decision, the
Examiner
stated:

. . . even where employes are informed across the bargaining
table that success in negotiating
higher wages will result in layoffs ­ a far more direct linkage between the protected
activity and the
detrimental consequence than exists in this case ­ no illegal motive is automatically
inferred. If the
employer's motive in transferring work or laying off employes is to save money relative to
negotiated
wage rates, that motive may trigger a bargaining obligation, but it is not an illegal motive for
purposes
of Section 111.70(3)(a)3. Supra at 45. (Emphasis supplied).

Respondent further notes in City of Brookfield, Dec. No.
20691-A (Bielarczyk, 5/93),
the Examiner concluded that the City had not committed a prohibited practice by laying off
certain
library employes and amending its civil service ordinance to exclude employes from that
ordinance
who were represented by a collective bargaining representative because the City's decisions
had a
legitimate basis and there was no evidence of union hostility. Respondent points out that in
affirming
the Examiner's decision the Commission ruled that the evidence failed to prove by a clear
and
satisfactory preponderance of the evidence that the City's actions were motivated, in part, by
anti-union considerations. Respondent adds that the Commission noted that the layoffs were
based on
the City's decision to stay within the library's budget allocation. Supra at 8.

Application of the above legal standards to the facts of this case demonstrates,
according to
Respondent, that no violation of Section 111.70(3)(a)4, Stats., occurred when the
City

Page 10

No. 28973-A

temporarily laid off two Wastewater Treatment Plant employes. Respondent reaches
this conclusion
for the following reasons. One, the City did not engage in bad faith bargaining with the
Union with
respect to a wage increase for the 1996 contract year because it informed the employes and
the Union
that acceptance of a wage increase above 2.75 percent would result in employe layoffs in a
meeting
in December of 1995 as well as the day before the ratification. Respondent adds that "when
the
employes voted on August 27, 1996, to ratify the contract settlement, the employes and the
Union
were fully aware of the effect of ratifying a 3 percent wage increase for the 1996 contract
year." By
failing to withdraw the tentative agreements that were before the employes for consideration
and
canceling the meeting, and/or by rejecting the tentative agreement and requesting further
bargaining
on the wage issue, Respondent claims "the Union and the employes accepted with full
knowledge,
the consequences of the employe layoffs which resulted from the 3 percent wage increase."

Two, the City's decision to layoff the two employes in question was based on
legitimate
business reasons. In this regard, Respondent notes that the City's decision to limit wage
increases
to 2.75 percent for the 1996 year was made before contract negotiations
commenced with the Union
for a successor collective bargaining agreement and was based on a desire not to increase the
tax levy
rate to finance increased personnel costs. (Emphasis supplied) Respondent adds that other
evidence
in this dispute indicates it did not bargain in bad faith or act based on hostility towards the
Union i.e.
layoffs were city-wide and did not focus solely on the Union and the City treated all
bargaining units
the same.

For the foregoing reasons, Respondent requests that the Examiner dismiss the
complaint in
its entirety.

In its reply brief, Respondent first argues that Complainant has mischaracterized the
facts in
this case. In this regard, Respondent argues that the record supports a finding that in
December,
1995, Onder advised Konop that a wage increase above 2.7 percent would result in employe
layoffs,
and that Konop and Mrotek were unable to produce any negotiation notes or documents
which
supported their testimony to the contrary.

Respondent next argues that Complainant has failed to meet its burden of proof that
the City
engaged in bad faith bargaining. In support thereof, Respondent first argues that it did
not
intentionally fail to advise the Complainant that a wage increase above 2.75 percent would
result in
employe layoffs. (Emphasis supplied) In this regard, Respondent notes that prior to the
December
18 or 19, 1995 negotiation session, the parties did not have an opportunity to discuss a wage
increase for the 1996 contract year. Respondent believes that Onder brought up the
consequences
of a pay raise over 2.75 percent with the Complainant at the aforesaid December meeting.
Respondent adds that Dickrell also advised the bargaining unit prior to ratification that
acceptance
of a 3 percent wage increase for the 1996 contract year would result in employe layoffs,
whereas
acceptance of a 2.75 percent wage increase would not result in such layoffs. Respondent
again points
out that Union Stewards informed Konop of the City's position on the wage increase prior to
ratification. Respondent concludes that when employes voted to ratify the

Page 11

No. 28973-A

contract settlement they, and the Union, were fully aware of the consequences of
ratifying a 3 percent
wage increase; and the City did not withhold that information.

Citing federal case law, Respondent points out that since Complainant never
requested
information as to how a 3 percent wage increase would be funded or how such an increase
would
impact on employes, Respondent was under no obligation to provide that information.

Respondent also rejects Complainant's allegation that the City engaged in bad faith
bargaining
in that its agents did not support the tentative agreement reached by the parties with respect
to a
wage increase for the 1996 contract year. In this regard, Respondent argues that there is no
evidence
that Dickrell argued in favor of a 2.75 percent versus a 3 percent wage increase. In
Respondent's
opinion, "Dickrell simply provided the employes with the information that had been
presented to him
from the City Administrator and he shared that information with the Department employes as
he
always did."

Finally, Respondent maintains that Complainant's claim that the City engaged in
unlawful
individual bargaining is without merit and contrary to the evidence. In this regard,
Respondent claims
that Dickrell did not threaten layoffs if the employees ratified the tentative agreement; "he
simply
shared with the employes the memorandum, which was sent to all represented employes, and
which
indicated that the City had to temporarily reduce staffing levels to meet the budgetary
mandates" set
by the Council. Nor is there any evidence that Dickrell attempted to "bargain" individually
with
employes according to Respondent. Respondent again points out that all that Dickrell did
was to
provide information to the employes so that they understood the impact of the City's
proposed 3
percent wage increase. Respondent opines that an employer can communicate truthful
comments
directly to its employes with respect to bargaining proposals citing St. Croix County, Dec.
No.
28791-A at 10 (Crowley, 5/97) in support thereof. Respondent adds that such an action does
not
constitute unlawful individual bargaining. Ashwaubenon School District, Dec. No. 14774-A
(WERC 10/97). Respondent also adds that Complainant had its agents present at the job site
(Union
Stewards were present and communicated the information in question to Konop).
Respondent further
points out that individual bargaining does not occur simply because an employer conducts an
informational meeting with its employes without the Union business agent being present.

DISCUSSION

Failure to Provide Information

Complainant initially argues that Respondent engaged in bad faith bargaining by
withholding
relevant information. In this regard, Complainant maintains that the duty to bargain in good
faith
includes the obligation to furnish information that is reasonably necessary to the Union's
performance
of its responsibilities as a bargaining representative citing several Commission decisions in
support
thereof. (1) However, the cases relied upon
by Complainant all provide that the aforesaid relevant
information must be provided upon request. (Emphasis

Page 12

No. 28973-A

added) Here the record is undisputed that Complainant made no such request. This
despite the fact
that Complainant's bargaining representative, Reggie Konop, had talked prior to the start of
negotiations with the AFSCME representative and stewards about the course of their bargain
including what the proposals were from both AFSCME and the City. (2) Since the City conveyed the
same message ­ that any wage increase over 2.75 percent would result in employe
layoffs -- to all six
bargaining units in the City, the Examiner finds it reasonable to conclude that Konop had
knowledge
of the aforesaid City position, but decided for whatever reason not to ask the City whether its
3
percent wage increase proposal included employe layoffs. As pointed out by Respondent,
without
a request for such information, the City is under no obligation to provide that information.
(3)

In addition, the record is undisputed that the City informed bargaining unit employes
on
August 27, 1996 that acceptance of a 3 percent wage increase would result in employe
layoffs,
whereas acceptance of a 2.75 percent increase would not result in employe layoffs. (4) Two Union
stewards were present at said meetings. Stewards are the Union's agents at the job site. (5) Said
stewards were also members of the Union's bargaining team. (6) Thus, the Examiner finds it
reasonable to conclude that the Union was notified on the aforesaid date that acceptance of a
wage
increase over 2.75 percent would lead to employe layoffs. And, in fact, the stewards
informed Konop
prior to ratification of the City's position relative to a wage increase and employe layoffs.
(7) So,
when the employes voted on August 28, 1996 to ratify the contract settlement, they and the
Union
were fully aware of the effect of ratifying a 3 percent wage increase for the 1996 contract
year. As
pointed out by Respondent, by "ratifying the 3 percent wage increase with knowledge of the
consequences of doing so, the Union and the employes accepted . . . the consequences of the
employe
layoffs which resulted from the 3 percent wage increase."

Based on the foregoing, the Examiner rejects the first claim of Complainant.

Discontinuing Support of a Tentative Agreement

Complainant next argues that Respondent engaged in bad faith bargaining by
discontinuing
support of a tentative agreement. In this regard, Complainant notes that the duty to bargain
requires
the City's bargaining agents to continue to support the tentative agreement that they
approved. (8)
In particular, Complainant complains that City representative Ron Dickrell went to the
Union's own
members the day before ratification to sabotage the agreement. Complainant adds: "Dickrell
attempted to coerce the unit into voting against the agreement by telling them they would be
laid off
if they accepted the agreement's 3 percent wage increase, but would not be laid off if they
accepted
a 2.75 percent increase." Complainant concludes that the City's "last minute efforts to
torpedo
support for the tentative agreement" through the efforts of Dickrell who had participated in
all of the
negotiations and mediation and who "had pledged his support for the tentative agreement",
constitutes bad faith bargaining.

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No. 28973-A

The problem with this argument is that it starts from the premise that there was a
tentative
agreement between the parties the City's bargaining representatives were obligated to
support. To
the contrary, the record indicates that there was "no meeting of the minds" between the City
and
Union regarding a 3 percent wage increase. In this regard, the Examiner notes that the
City's
representatives believed that Onder had informed the Union at the December, 1995, meeting
that any
wage increase over 2.75 percent would lead to employe layoffs. Consequently, they did not
raise the
issue again either at the mediation session where the Union accepted a City proposal for a 3
percent
annual wage increase for three years without much discussion on the subject or at any time
material
thereafter. In addition, the record is clear that the Union understood that its bargaining unit
members
"were going to get a solid 3 percent increase and there was nothing that was going to affect
them"
both as a result of the mediation meeting, (9)
and at all times material herein prior to the day before
ratification. (10) Based on the foregoing, it is
clear to the Examiner that although the parties agreed
to a 3 percent wage increase for 1996, etc. said wage increase meant different things to each
of them.
The Union believed it was getting a straight 3 percent wage increase with no strings attached
while
the City believed that the Union accepted a 3 percent increase understanding that such an
increase
entailed employe layoffs. Absent a bargaining history that the parties understood the
meaning that
the other side attached to the 3 percent wage increase, the Examiner finds, as noted above,
that there
was no "meeting of the minds" on the subject. Since the parties did not reach a tentative
agreement
over same, the City's representatives, including Ron Dickrell, were not obligated to continue
their
support of the 3 percent wage increase.

Complainant also attacks Diskrell's attempt to torpedo the tentative agreement by
encouraging the employes to vote against same. For the reasons discussed below, the
Examiner
rejects this allegation of Complainant finding instead that Dickrell simply shared information
with the
bargaining unit and did not attempt to "bargain" with the employes or coerce them into
rejecting the
tentative agreement.

Based on the above, the Examiner rejects the second claim of Complainant.

Illegal Direct Dealing

Finally, Complainant argues that Respondent engaged in illegal direct
dealing by deliberately
bringing employes into negotiations after negotiations with the exclusive bargaining agent had
concluded. In particular, Complainant complains that the City spent months negotiating an
agreement
only to do an end run around the Union hours before ratification. Complainant alleges the
City
captivated employes, deliberately excluding the Union, and threatened employes with layoffs
if they
ratified a contract they believed was supported by both the City and the Union. Complainant
concludes that whatever their specific intentions Respondent's direct approach of employes
and
request they reject the tentative agreement "was a blatant incident of direct dealing."

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No. 28973-A

Section 111.70(3)(a)4, Stats., makes it a prohibited practice for a municipal employer
"[t]o
refuse to bargain collectively with a representative of a majority of its employes." As
pointed out by
Complainant, bargaining with individual employes has been found to constitute such a
refusal. (11)

In the instant case, the question before the Examiner is whether Respondent engaged
in illegal
direct dealing or exercised its First Amendment rights to communicate its views directly to
members
of the bargaining unit. (12) For, employers
have long enjoyed the right to tell their employes what
they have offered to their union in the course of collective bargaining. (13) And, while employer
statements must not constitute bargaining with the employes rather than their majority
collective
bargaining representative, (14) even inaccurate
employer statements, are not themselves unlawful,
since there are instances when an innocent misstatement of fact may be harmless or the union
may
have the burden of correcting a misstatement. (15) The test is whether by its statements the
Employer
has violated the rights of employes, such as by interference, coercion or threats. (16)

A careful examination of the record indicates that Respondent did not engage in
illegal direct
dealing by its actions and statements on August 27, 1996. In this regard, the Examiner
points out that
City bargaining representative Ron Dickrell did not "threaten" employes with layoffs if they
ratified
the tentative agreement. (17) Rather, he
simply shared with the employes a memorandum, which was
sent to all represented employes which explained that the City had to temporarily reduce
staffing
levels to meet the budgetary mandates established by the Common Council.

Dickrell also explained to the employes on said date that a 2.75 percent increase
would not
result in employe layoffs where a 3 percent wage increase would result in layoffs. However,
Dickrell
did not attempt to "bargain" with the employes or "coerce" them into rejecting the tentative
agreement. Instead, he simply provided the information so that the employes understood the
impact
of the City's proposed 3 percent wage increase. (18) As pointed out by Respondent, an employer
can
communicate truthful comments directly to its employes with respect to its bargaining
proposals. (19)

Complainant also argues that Respondent attempted to exclude the Union from this
individual
bargaining with the employes. It is true that Respondent did not inform Konop of the August
27th
meeting prior to its occurrence. (20)
However, as pointed out by Respondent, unlawful individual
bargaining does not occur simply because an employer conducts an informational meeting
with its
employes without the Union Staff Representative/Business Agent being present. (21) Here, Union
stewards Daniel Mrotrek and Harold Taushek, who were members of the Union's bargaining
committee, were present at the August 27th meeting. Stewards are the
Union's agents at the job site.
(22) Thus, the bargaining unit employes had
Union representation, including members of its
bargaining team, at the meeting in question. One of the stewards, Mrotek, informed Konop
prior to
ratification that Dickrell made the aforesaid disputed statements at the August
27th meeting. (23)
Thus, Konop and the Union were aware of

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No. 28973-A

the consequences of accepting a 3 percent wage increase prior to ratifying the
agreement, but took
no action regarding same. As pointed out by Respondent, "[b]y ratifying the 3 percent wage
increase,
the employes accepted the consequences of that increase."

Based on all of the above, the Examiner also rejects this claim of Complainant.

Having reached the above conclusions, the Examiner finds it unnecessary to address
the
relevance of the long line of cases cited by Respondent for the proposition that it acted
properly
herein based on legitimate business reasons, not out of any hostility toward Complainant.

Following completion of the parties' initial briefing schedule Respondent on October
6, 1997,
submitted a copy of "a recent decision from the WERC which we believe is relevant to the
position
of the parties in the above matter." (24) By
fax received on October 15, 1997, Complainant argued
that said case is distinguishable from the instant dispute on several grounds. Again, having
reached
the above conclusions, the Examiner finds it unnecessary to address the relevance of said
decision.

Based on all of the foregoing, and the record as a whole, the Examiner finds that the
allegations of prohibited practices by Complainant are without merit, and the Examiner has
dismissed
the complaint in its entirety.

4. Contrary to Respondent's assertion, the Examiner finds
that Onder did not advise the Union on
December 18 or 19, 1995, that if the bargaining unit employes obtained a wage increase
higher than
2.75 percent, employe layoffs would occur. In this regard, the Examiner notes that while
Onder
testified that she informed the Union of this position Tr. at 13 her testimony is unpersuasive.
The
Examiner reaches this conclusion on the basis that Onder's testimony is replete with
examples of
inconsistent, vague, contradictory, confusing and unresponsive testimony. See, for example,
Tr. at
17, 22-26, 29-30, 32-34, 37 and 40. In addition, although not completely reflected in the
written
transcript, the Examiner found Onder's testimony erratic ­ sometimes fast and
unintelligible Tr. at
34; other times slow with long pauses before answering the question posed to her. At these
times,
the Examiner felt Onder was making up her answers to fit her story line i.e. that she
informed the
Union at the aforesaid December meeting that if the bargaining unit employes obtained a
wage
increase higher than 2.75 percent , employe layoffs would occur. Finally, Dickrell who was
present
at the December negotiation meeting was unable to corroborate Onder's testimony. In
contrast,
Konop testified clearly and persuasively that Onder simply advised him that the City offered
a 2.75
percent wage increase "and that was it" at the aforesaid meeting. Tr. at 48. Both Daniel
Mrotek Tr.
at 74-76 and Harold Tayshek Tr. at 90-91 generally corroborated Konop's testimony.

17. Significantly, neither Daniel Mrotrek nor Harold
Taushek, Union stewards and members of its
bargaining team, testified that Dickrell threatened employes with layoffs if they ratified the
tentative
agreement or attempted to coerce employes into rejecting the tentative agreement. Rather,
they
corroborated Dickrell's testimony that he simply "presented" Tr. at 78 and 91 the
information to the
bargaining unit.

18. As noted earlier in the Discussion portion of this
Decision, the City was under the erroneous
impression that it had made a wage proposal which was accepted by the Union with the
understanding that said acceptance entailed employe layoffs. Therefore, the City probably
believed
that it was simply reiterating a position that it had stated earlier in the bargain when Dickrell
made
the statements in question to bargaining unit employes on August 27, 1996.